Success Lane Development Ltd v. Fergurson Hong Kong Ltd t/a New World Millennium Hong Kong Hotel
Read the full judgment text of DCCJ 2191/2023 on BabelCite. This District Court judgment was delivered on 19 July 2024.
1. There are two summons before the court by the plaintiff dated 20 February and 19 March 2024 respectively.
Cited by 3 cases · Cites 3 cases
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DCCJ 2191/2023 [2024] HKDC 1072 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION ____________________
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___________________ DECISION ___________________ 1.There are two summons before the court by the plaintiff dated 20 February and 19 March 2024 respectively. 2.On 7 May 2024, the court ordered that both parties should lodge and serve their respective written submissions and that both summon be dealt with by paper disposal. 3.The following are the court’s decisions. Summons dated 20 February 2024 4.By this summons, the plaintiff seeks leave to appeal against the decision of this court dated 6 February 2024 (“the Costs Decision”). 5.The detailed background has already been stated in the Costs Decision and needs not be repeated. 6.In summary, the Costs Decision concerned three summons taken by the plaintiff (referred to as the “October Summons”, the “5 December Summons” and the “8 December Summons”) all related the same cost order nisi made against the plaintiff for its earlier summonses of 22 and 26 September 2023 (“the Costs Order Nisi). These earlier summonses were heard on 29 September 2023 during which an oral decision, including the Cost Order Nisi, was given (“29 September Decision”). Legal Principles 7.For leave to appeal to be granted, the court will apply the “reasonable prospect of success” test or the “interest of justice” test as the threshold (District Court Ordinance Cap.336 s63A(2)). 8.“Reasonable prospect of success” involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”. (SMSE v KL [2009] 4 HKLRD 125) Considerations Appeal against the dismissal of the October Summons 9.In the October Summons, the plaintiff sought to “set aside” the defendant’s Statement of Costs for allegedly being late. Paragraph 9 of the Cost Decision clearly stated this was not late according to Order 3, r. 2(5). 10.In seeking the leave for appeal, the plaintiff simply asserted that the Statement of Costs was not lodged or served before the date the plaintiff thought was the deadline. However, the plaintiff failed to advance any dispute that the court has applied the law (including Order 3, r.2(5)) incorrectly. 11.There is clearly no reasonable prospect of success for this appeal. Appeal against the dismissal of the 5 and 8 December Summons 12.Here, the plaintiff repeats the same argument that it has advanced before, which was a bare assertion that somehow an ex-parte letter it wrote to the Court on 6 October 2023 seeking to stay the Costs Order Nisi should be treated as a proper application to vary the Cost Order Nisi. 13.The court’s finding on this argument has already been stated under paragraphs 3 to 8 of the Costs Decision. Basically, despite the court’s explanation during the original hearing about the need to take out an application to vary the Costs Order Nisi, the plaintiff chose to write an ex-parte letter to the court to stay the Cost Order Nisi (the grounds of which were the same arguments made at the original hearing on 29 September 2023). This was therefore not a proper inter-partes summons to vary the Costs Order Nisi. 14.The plaintiff has failed to raise any reasonable ground to dispute these findings, besides the bare assertion that “the Judge had actually received P’s application to vary the Costs Order Nisi by way of letter dated 6 October 2023”. 15.The plaintiff appears to try to blame the court for not providing a reply to this letter of 6 October 2023. 16.I cannot see how this can be a ground for appeal. 17.The court has limited resources and its time management cannot be dictated by any obligations imposed by a party demanding replies to its “ex-partes” letters (especially one that ran to some 6 pages and 27 paragraphs). In any case, the court should not engage in “private” conversations or arguments with one party. It also goes without saying that the court has no duty to, and indeed must refrain from, providing legal advice to any parties. Suffice to say, the court has already explained the legal procedures during the original hearing. 18.Having found that the letter was not a proper application, it must then follow that the 5 December Summons and 8 December Summons must fail because the Cost Order Nisi has already been made absolute on 10 October 2023. 19.There cannot be any reasonable prospect of success in any appeal against these decisions. 20.The only dispute in law raised by the plaintiff was that “the Judge ordered the parties could apply to vary the Costs Order Nisi within 7 days…not 14 days according to Order 42/5B/1”. 21.Firstly, even here, the plaintiff clearly admitted that it was aware that that it should apply to the court to vary the Costs Order Nisi. 22.Secondly, the order quoted by the plaintiff is for written decisions reserved to be handed down on a later date. In the current case, the Costs Order Nisi was given orally as part of the 29 September Decision so the order does not apply. 23.In any case, the court has a general case management power to make such decisions regarding time (The Rules of the District Court Cap. 336H Order 1A, r.4(2)(g)). The reason for such was made abundantly clear during the hearing regarding the court’s concerns with the plaintiff‘s conduct in the claim. 24.The plaintiff also asserted that “the Judge was wrong / misunderstood in law in paragraph 1 of the Decision, which states that “all three summons are to be dealt with by way of paper disposal”. 25.These were case management directions made by the court for handing the plaintiff’s multiple applications (which were essentially on the same order, the Cost Order Nisi). The plaintiff has provided no support for this dispute. Appeal against the Indemnity Cost Order, Immediate Costs Order and Summary Assessment Order 26.The plaintiff also sought to appeal against the above orders which were made on 29 September 2023 as part of the cost order nisi. 27.All this again goes back to the plaintiff’s bare assertion that its letter of 6 October 2023 was a proper application to vary the Costs Order Nisi. Given that there is no reasonable grounds for such an assertion, the plaintiff cannot now appeal against the Cost Order Nisi given that it has been made absolute long time ago on 10 October 2023 (see paragraph 9 of the Costs Decision). 28.Further, given that the plaintiff’s application for leave for appeal against the 29 September Decision was also dismissed, pending any future rulings of an appeal to the Court of Appeal, it is not open for the plaintiff to sought to re-argue the matters again to dispute the costs order in that decision (Zhao Zhi Qiang v Zhao Zhiquang and Anor [2021] HKCU 415). 29.The plaintiff also sought to re-argue the quantum of costs awarded. Much of these are another re-argument of matters already raised in the plaintiff’s list of objections which were already considered by the court in the summary assessment of the plaintiff’s bill. “A second bite at the cherry” should not be allowed. 30.It is of note that the court awarded the costs on an indemnity basis due to the fact that the plaintiff has abused the process by repeatedly taken out related but baseless applications (often accompanied by substantive documents) despite repeated warnings of such conducts by the court. The plaintiff only has itself to blame for having to pay all the plaintiff’s costs “except in so far that they are unreasonable and/or have been unreasonably occurred”. 31.It is trite that the award of costs is at the discretion of the court and that the threshold of reversing such cost order is high. There is nothing raised by the plaintiff that show any palpable error the plaintiff’s costs was “unreasonable and / or unreasonably occurred“ given the arguments that some work might be repetitive. It was the plaintiff which commenced repetitive related applications, it was not unreasonable for any prudent legal representative to conduct all related legal research etc. for each application despite its outwardly similarity, especially when faced with substantive amounts of materials advanced by the plaintiff. Summons dated 19 March 2024 32.This is an application for leave to appeal against another costs order. 33.The plaintiff’s has previously also applied for leave for appeal against the 29 September Decision. 34.The court has directed the application to be dealt with by paper disposal and the application was dismissed in the court’s decision dated 5 March 2024 (the “Leave for Appeal Decision”). 35.Here, having dismissed the application, the court made a summary assessment of costs (at HK$50,000) and ordered this to be payable forthwith (paragraph 24 of the Leave for Appeal Decision). 36.The plaintiff now seeks leave to appeal against this cost order. 37.The court notes that this application was by way of paper disposal with the defendant proactively submitting its summary bill of costs along with its written submissions. As such, the summary assessment was made without affording a chance for the plaintiff to put in a summary list of objections. 38.Of course, it is trite that the discretion to award costs rest with the court and, in paragraph 25 of the Leave for Appeal Decision, this court has again criticised the plaintiff’s litigation conduct and has put down a marker for a “proper warning” to the plaintiff. 39.Further, the rationale behind a summary assessment is often a case management decision for the benefit of timely and economical disposal of matters. The court is aware of the circumstances of this case given plaintiff’s litigation conduct all along. 40.On the other hand, one can argue that it is usual practice for a summary assessment of costs to allow a chance for the paying party to submit a summary list of objections before the court exercise the assessment. Perhaps one also argue that, only then, the court may be able to consider all the relevant circumstances of the proceedings. Further, it may be a matter of natural justice to allow such. 41.On balance, the court find that there is a reasonable prospect of success of this appeal and possibly a matter concerning the interest of justice in the procedure in summary assessment of costs. 42.As such, the court would allow leave to appeal against this cost order. Order 43.The court will make the following order:
The plaintiff appeared in person Ms Wong Lok Yan and Mr Leung Ho Yin, of Messrs Y T Chan & Co., for the defendant |
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